HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Judgment Civil Misc. Writ Petition No.37288 of 2011 Ashok Kumar Vs. State of U.P. and others ****
Hon'ble A.P. Sahi, J This petition questions the correctness of the impugned orders including the order dated 14.1.2008 passed by Sub-Divisional Officer and the order passed by Addl. Collector dated 31.5.2011 affirming the same arising out of summary proceedings of expunging the name of the petitioner from the land in dispute. The ground of challenge is that the order was passed in violation of principles of natural justice in an administrative capacity and without applying mind to the facts of the case.
The claim of the petitioner is that the predecessor in interest of the petitioner namely Smt. Chhotti was the allottee of the land since the year 1973. The land was recorded as "Banjar". The allotment is sought to be annulled by virtue of a summary order holding that the statutory period of lease has expired and, therefore, the petitioner cannot continue to hold over the land. It has been categorically recorded that the period is 5 years whereas the petitioner has continued for almost more than 3 decades without having any right, title or interest over the land in dispute.
Sri Srivastava relying heavily on the judgment in the case of Hari Ram Vs. Collector, District Saharanpur/Addl. Collector and others, 2004 (97) RD 360, submits that without following the procedure prescribed as provided for under Rule 176-A of the U.P. Zamindari Abolition & Land Reforms Rules, the petitioner could not have been evicted without determining the lease keeping in view the provisions of Section 194 (c) of the Act.
Sri Srivastava has invited the attention of the Court to the judgment aforesaid particularly paragraphs 17 to 26 to contend that having failed to follow the procedure prescribed in law, the authorities have committed a manifest illegality and hence the impugned order is vitiated. Further reliance is placed on the judgment in the case of Ramdeo and others Vs. State of U.P. and others, 2008 (4) ADJ 625, which judgment has also been cited by the learned Standing Counsel. Another decision in the case of Deoraj and others Vs. Commissioner, Bareilly Division, Bareilly, and others, 2010 (1) ADJ 669, has been brought to the notice of the Court to contend that no Suit having been filed under Section 202, the ejectment of the petitioner could not have been ordered in a summary fashion that too even in violation of principles of natural justice.
Replying to the said submissions, the learned Standing Counsel has invited the attention of the Court to the judgment of this Court in the case of Ram Suchit and another Vs. State of U.P. And others, 2007 RD 435, and the latest decision in the case of Chhotti Vs. State of U.P. through District Magistrate, Bijnor and others, 2010 (109) RD 240, to contend that the petitioner even before this Court, having failed to establish his title, is not entitled for getting a remand on the ground of violation of principles of natural justice and the lease having been defined statutorily and fixed by law, the petitioner does not have any subsisting right to contest the matter. It is urged by the learned Standing Counsel that the petitioner before this Court has failed to demonstrate the continuance of his lease or its survival and, therefore, the case of Hari Ram (supra) as relied upon would not come to the aid of the petitioner. Learned Standing Counsel submits that the case of Hari Ram was decided on the facts as disclosed therein. He has particularly invited the attention of the Court to para 19 of the said decision to contend that in that case the tenure of the lease was presumed to be existing as it was not clear to the Court on the material on record as to whether the leases granted therein were for a fixed period or on the basis of year to year. Not only this, the said judgment related to a land as defined under Section 132 of the Act which is not the position in the present case and hence reliance on the said judgment is absolutely misplaced.
Having heard learned counsel for the parties, it would be appropriate to quote the following recital contained in paragraph no.19 in the case of Hari Ram (supra):-
"19. ....From the materials brought on the record, it is not clear as to whether leases granted to the petitioners were for a fixed period or whether from year to year. There being no material on the record to establish that leases granted to the petitioners were for the fixed period, the asami leases granted to the petitioners are assumed to be leases from year to year."
In the instant case, the petitioner in paragraph No.4 has clearly mentioned that he is a class-III lessee. It is on the strength of the said lease that the petitioner got his name mutated during consolidation operations. In the opinion of the Court, the mere recording of the name of the petitioner does not give him a right higher than that which has been fixed under the Statute. The petitioner claims himself to be a lessee as defined under Section 133 (c) of the U.P. Zamindari Abolition & Land Reforms Act. Section 132 of the Act provides that no-one shall acquire rights of a Bhumindari tenant in respect of such land. The petitioner, therefore, cannot claim himself to be a bhumindar of the land in dispute nor can his name continue to be recorded as such. Any continuance of entry would, therefore, not confer any title beyond the period for which the lease existed. For this, the proviso to Rule 176-A would be relevant which prescribes the period of the lease. Earlier, the lease was for a period of 9 years which came to be restricted to 5 years after the amendment w.e.f. 1.11.1975. Prior to that the period of letting out to a asami was 9 years as per sub-Rule 2 of Rule 171-A. This aspect has been noted in para 28 of Ramdeo's case (supra).
Where the Statute itself has determined the period of lease then in the opinion of the Court, no fresh determination is required. If the person has unauthorizedly held over the land, he can be ejected by either taking recourse to summary proceedings or to any other mode after putting him to notice. The ratio of the case of Hari Ram, therefore, has to be understood in the aforesaid context.
Similarly in the decision in the case of Ramdeo and others, the Court further came to the conclusion that a summary procedure is also provided under Section 212-A of the U.P. Zamindari Abolition & Land Reforms Act. While dealing with the provisions of the U.P. Land Revenue Act, this Court further held in para 5 of Ramdeo's decision (supra) that the only procedure available for the determination of a lease is Section 202, cannot be accepted.
The opportunity to the petitioner for establishing his right as against the period prescribed for subsistence of the lease was available before this Court as well. It is not the case of the petitioner that the lease was either extended to the petitioner or was granted to the others afresh. The petitioner has not placed any material indicating extension of the lease or otherwise being continued under any law for the time being in force. Further the amendment in the Rules as pointed out herein above, the period of lease stood reduced to 5 years. Even that period has expired. The petitioner, therefore, cannot continue as an asami beyond the said statutory period.
Faced with this situation and having noticed the decisions in the case of Hari Ram and others herein above, this Court in paras 6 to 8 in the case of Chhotti Vs. State of U.P. and others, held as under:-
"6. As by virtue of the aforesaid rule maximum period the lease is five years and petitioner has not stated anything in this writ petition that in case opportunity of hearing is provided to him, what plausible cause he will be able to show hence it is not appropriate to remand the matter for fulfilment of useless formality of opportunity of hearing. The proceedings in which impugned order was passed were in fact under Rule 176-A(2).
7. At this juncture reference may also be made to the Authority in Hari Ram Vs. Collector, wherein it has been held that for eviction of asami it is not necessary to file suit under Section 202 of the Act and it may be done by passing orders under Section 33/34/39 of U.P.L.R. Act also.
8. Accordingly, there is no merit in the writ petition hence it is dismissed."
The giving of an opportunity would, therefore, be an empty formality. It would be appropriate to explain that this concept of opportunity was held to be available on the facts of Hari Ram's case where the period of lease was not known and which was noted in para 19 of the said case.
Accordingly, the said decision does not come to the aid of the petitioner. In such a situation, the petitioner even otherwise on merits has no plausible case to be considered on merits and the writ petition is, accordingly, dismissed.
Dt. July 18, 2011 Irshad